- Dr Seth Wekesa, a Governance Expert and Law Lecturer at the University of Nairobi says that if they become law, the amendments will deal a big blow to the fight against corruption.
- The amendments are proposed in the Anti-Corruption and Economic Crimes (Amendment) Bill, 2023 sponsored by Mbeere North MP Geoffrey Kariuki Ruku. Ruku is serving his first term under the Democratic Party that supports UDA.
In the wake of national anti-corruption efforts spearheaded by relevant state agencies and President William Ruto, the National Assembly’s Committee on Justice and Legal Affairs (JLAC) has been presented with a Bill seeking to delete two offences from the Anti-Corruption and Economic Crimes Act, 2003.
The Act provides the legal framework for the investigation, prosecution and sanctions for corrupt conduct.
The amendments are proposed in the Anti-Corruption and Economic Crimes (Amendment) Bill, 2023 sponsored by Mbeere North MP Geoffrey Kariuki Ruku. Ruku is serving his first term under the Democratic Party that supports UDA.
Specifically, the Bill seeks to amend section 45(2) of the Act by deleting the two (2) offences prescribed in parts 2(b)and (c) namely the failure to follow procurement guidelines and engaging public funds in an unplanned project.
The Bill was last scheduled for consideration before the Justice and Legal Affairs Committee of the National Assembly on Wednesday, May 24, 2023.
In seeking to de-criminalize non-compliance with procurement guidelines and engagement in unplanned public projects, the Bill terms them as administrative matters that are better addressed through administrative action as opposed to criminal prosecution as is the current case.
Experts and analysts term the proposed amendments as dangerous saying that if enacted into law, they will defeat the ongoing efforts to tame procurement-related corruption.
Dr Seth Wekesa, a Governance Expert and Law Lecturer at the University of Nairobi says that if they become law, the amendments will deal a big blow to the fight against corruption.
According to the law don, there is no justifiable cause for the bid to replace the current criminal sanctions for procurement malpractices with administrative actions.
"If enacted as proposed, these amendments will, certainly, weaken the fight against corruption in Kenya. Although some Statutes provide for administrative remedies including dismissal and disciplinary action against public officials, the criminalization of malpractices in public procurement is essential to protect public funds from misuse," says Dr Wekesa.
According to the EACC Annual Report for the Financial Year 2021/22, investigations undertaken involved breaches at various stages of the procurement process which saw suspects charged under the legal provisions now targeted for repeal.
Similarly, civil suits for the recovery of proceeds of corruption stemming from irregular procurement processes have been conducted.
An example is the case facing the former Kiambu Governor where EACC wants Waititu compelled to forfeit to the State his assets worth Sh1.9 billion suspected to have been acquired through corruption.
Court documents seen by the Star indicate that when he served as Kiambu Governor, Waititu allegedly received huge amounts of money from firms trading with the county government which EACC told the Court were kickbacks arising from procurement fraud.
The amendments proposed by the Mbeere North MP come amid heightened efforts by the Government to escalate the anti-corruption war.
Last week, President William Ruto issued a proclamation on the fight against corruption declaring that during his tenure, no iota of corruption will be tolerated.
In a Circular issued by the Head of Public Service Felix Koskei to all heads of Ministries, Departments and Agencies, the President directed them to personally lead the fight against graft in their dockets.
“You are strongly advised to take note of the specific constitutional and legislative provisions relating to each of your offices and to ensure compliance within your respective institutions. The President expects unwavering fidelity to the Constitution and to the people, on whose behalf you are managing public resources,” Part of the Circular read.
The Ethics and Anti-Corruption Commission said that it will peruse the proposed Bill and raise any issues of concern with the Justice and Legal Affairs Committee of the National Assembly which it termed as a strategic partner in the discharge of its mandate.
Reacting to the Bill, the Commission’s Head of Corporate Affairs and Communication Eric Ngumbi told The Star amendments should not be inimical to the fight against corruption.
He said changes to existing anti-graft laws should aim at enhancing their effectiveness but not creating loopholes or legal escape routes for perpetrators of corruption
Multiple analysts expressed fears that if enacted into law, the amendments could reverse the gains made so far in holding Accounting Officers and persons involved in public procurement and financial management to account for corrupt conduct.